Sexting & Child Pornography: South Australian Law

The explosion in recent years of the use of apps such as Facebook, Snapchat and others by young adults- including high school age children- raises a worrying question about the particular issue of ‘sexting’ and the serious legal risks associated with it. The New South Wales Government defined ‘sexting’ as something which “…involves sending suggestive or sexual images through mobile phones that could be posted on the internet or forwarded onto other people.” The question arises in the situation where a young adult, under the age of seventeen, may send their partner, who may well be be slightly above the age of seventeen or below the age of eighteen themselves, a sexually explicit image via one of these applications. Should the recipient’s possession of that material come to the attention of the authorities then it would likely be a breach of Section 63A(1) of the Criminal Law Consolidation Act 1935 (SA):

Any person who is in possession of child exploitation material (child pornography) knowing of its pornographic nature; who attempts to obtain, or makes a step towards obtaining, exploitation material is guilty of an offence.

The federal law would also catch such behaviour under Section 474.19(A) of the Criminal Code Act 1995 (Commonwealth) which creates an offence to use phone or internet services to access, send, publish or produce material that is child pornography. It is also the case that the person who created and sent the image, even it that image was an image of themselves, may fall foul of the more serious allegation of production of child exploitation material (child pornography) pursuant to Section 63 of the Criminal Law Consolidation Act as follows;

Any person who knowingly produces, or takes part in any stage of the production of, child exploitation material (child pornography) is guilty of an offence. It is also an offence to distribute, or take part in any stage of the distribution of, child exploitation material whilst knowing of it pornographic nature.

A defence will exist to a charge of possession of child pornography in South Australia if a defendant can demonstrate that the offending material came into the possession of the accused person unsolicited; that is without the accused taking steps to access or encouraging or consenting to its arrival, and that as soon as that person became aware of the material being in their possession and the pornographic nature of same takes reasonable steps to destroy or otherwise get rid out it (Section 63A(2) of the Criminal Law Consolidation Act) this can apply in a vary of situations; such as if an accused person were to receive a pornographic text message from an under age person without having asked, encouraged or consented to it, where the sender hoped to gain the affection of that person; or alternatively if a person had accidentally accessed child pornography on the internet and immediately deleted that material. It is important to note that it is a defence where in the onus of proof is reversed, that it is up to the defendant in such circumstances to prove on the balance of probabilities that the material was unsolicited and that steps were taken to remove or destroy it at the earliest opportunity.

This area is highly fraught in that it sees the criminialisation of a class of persons who, on a moral basis, such as the example of two consenting sixteen year olds, would not by any reasonable measure of community standards, be considered to be behaving in a criminal fashion or with anything more sinister that perhaps youthful exuberance. There are serious consequences that can flow from a conviction in relation to child exploitation material, much like any under age sex offence such as unlawful sexual intercourse or gross indecency, and the ramification of a conviction will follow a convicted person for life. In the latter examples a convicted person may be required to be subject to the conditions imposed by the Child Sex Offender Registration Actfor life.

If you have concerns that you may or have already been charged or suspected of an unlawful sexual intercourse or child pornography offence, it is important that you consult with a criminal lawyer immediately. For 24 hour advice or attendance by one of our team, Culshaw Miller Criminal Lawyers is available on (08) 8312 4520. If you wish to make an appointment call 08 8464 0033 or email tom.cuthbertson@culshawmillercriminallawyers.com.au to make arrangements.